Preview
1 Stephen B. Heath - 237622
Steven W. Yuen - 230768
2 eservice@heathandyuen.com
Paul A. Vaillancourt - 223648
3 pvaillancourt@heathandyuen.com
HEATH & YUEN, APC
4 268 Bush Street, #3006
San Francisco, CA 94104
5 Tel: (415) 622-7004
Fax: (415) 373-3957
6
Attorneys for Defendant
7 Gerardo Clavel
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF MONTEREY
10 ISMAEL LOPEZ, Case No.: 20CV002481
11 Plaintiff, DEFENDANT GERARDO CLAVEL’S
TRIAL MANAGEMENT REPORT
12 v.
Judge: Hon. Thomas W. Wills
13 INNS OF CALIFORNIA, GERARDO CLAVEL, Dept.: 15
GERRY TRUCKING LLC, AND DOES 1 TO File Date: September 16, 2020
14 25, Trial Date: May 6, 2024
15 Defendants.
_______________________________________
16
17 I. ATTORNEY AND CASE INFORMATION
18 Case Name: Ismael Lopez v. Inns of California, Gerardo Clavel, Gerry Trucking and DOES 1-25
19 Trial Attorneys:
20 • Plaintiff Lopez: S. Colin Brown - (831) 426-1300;
21 • Defendant Gerardo Clavel: Stephen Heath and Steven Yuen - (415) 622-7004;
22 • Defendant Inns of California: Anthony Pinelli - (408) 288-3868;
23 • Gerry Trucking LLC: suspended and unrepresented;
24 • Francisco Perez: default taken.
25 II. SUMMARY AND NATURE OF THE CASE
26 In June 2020, suspended corporation Gerry Trucking’s business activities included shipping
27 produce in the Salinas area. Gerry Trucking would rent parking spots for its 4-5 trucks at Inns of
28 California on a monthly basis. Approximately 18-25 trucks utilized the parking spots at any given
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DEFENDANT GERARDO CLAVEL’S TRIAL MANAGEMENT REPORT
1 time, and the drivers would typically only be present early in the morning to start their day and return
2 to the lot at the end of their day.
3 On June 9, 2020, between 10:00a.m. and 11:00a.m. plaintiff was at the lot that had been
4 previously shown to him as the location of the trucks, should he had been hired. The weather was
5 clear and any sound from nearby Highway 101 would not impact anyone’s ability to conduct a normal
6 conversation. An employee of Gerry Trucking, Francisco Perez, was also at the lot and needed to
7 transfer a pallet jack from the back of his box truck, to the back of plaintiff’s. This is a common
8 occurrence in the industry as it allows for the pallet jack to easily transferred by simply pushing the
9 pallet jack from one to the other. Mr. Perez and plaintiff discussed, and it was clear to both, that Perez
10 was going to back up to plaintiff’s truck. Despite knowing the plan and there being no visual or
11 auditory issues, plaintiff somehow situated himself between the two trucks causing injury.
12 Gerry Trucking was suspended by the secretary of State on October 5, 2021, well after the
13 incident. Francisco Perez was DOE’d into the case and his default was later taken. Plaintiff also has a
14 claim against the Inns of California for premises liability.
15 III. STATEMENT OF ISSUES, CAUSES OF ACTIONS, AND DEFENSES
16 Plaintiff’s Negligence Claim
17 “The elements of a cause of action for negligence are well established. They are ‘(a) a legal
18 duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal
19 cause of the resulting injury.’” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) “A person
20 must use reasonable care in driving a vehicle. Drivers must keep a lookout for pedestrians, obstacles,
21 and other vehicles. They must also control the speed and movement of their vehicles. The failure to
22 use reasonable care in driving a vehicle is negligence.” (Judicial Council of Cal. Civ. Jury Instns.
23 (2021) CACI 700.)
24 The doctrine of res ipsa loquitor, codified at Evidence Code section 646, “is defined by statute
25 as ‘a presumption affecting the burden of producing evidence.’” (Brown v. Poway Unified Sch. Dist.
26 (1993) 4 Cal.4th 820, 825, cited in Judicial Council of Cal. Civ. Jury Instns. (2022) CACI 417.) “The
27 presumption arises when the evidence satisfies three conditions: (1) the accident must be of a kind
28 which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an
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DEFENDANT GERARDO CLAVEL’S TRIAL MANAGEMENT REPORT
1 agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due
2 to any voluntary action or contribution on the part of the plaintiff.” (Id., at 825-826, internal quotation
3 marks omitted, emphasis added.) “‘The doctrine of res ipsa loquitur is applicable where the accident is
4 of such a nature that it can be said, in the light of past experience, that it probably was the result of
5 negligence by someone and that the defendant is probably the one responsible.’” (Howe v. Seven Forty
6 Two Co., Inc. (2010) 189 Cal.App.4th 1155, 1161.) The doctrine “is based on a theory of ‘probability’
7 where there is no direct evidence of defendant’s conduct, permitting a common sense inference of
8 negligence from the happening of the accident.” (Gicking v. Kimberlin (1985) 170 Cal.App.3d 73, 75.)
9 “All of the cases hold, in effect, that it must appear, either as a matter of common experience or from
10 evidence in the case, that the accident is of a type which probably would not happen unless someone
11 was negligent.” (Zentz v. Coca Cola Bottling Co. of Fresno (1952) 39 Cal.2d 436, 442-443.)
12 A driver can be found negligent despite looking while backing their vehicle. (McManus v.
13 Arnold Taxi Corp. (1927) 82 Cal.App. 215, 218-219 [“the finding upon the question of negligence
14 must be sustained under those authorities holding in substance that where one passing several feet back
15 of a standing automobile is injured by reason of the sudden backing of the machine, without warning,
16 an inference that the driver is negligent is justified”].) The fact a driver thought he had sufficient space
17 to back up without striking another vehicle does not relieve the driver’s employer from liability under
18 last clear chance doctrine for injuries sustained in a resulting collision. (Perin v. Nelson & Sloan
19 (1953) 119 Cal.App.2d 560, 561-562.) In this case, the driver Perez was an employee of Gerry
20 Trucking.
21 Normally, it is a vehicle violation to reverse a vehicle onto a highway or street, unless it can be
22 done with “reasonable safety.” Whether an act can be done with “reasonable safety” is determined by
23 the facts of a case. (Veh. Code §22106.) However, California’s Vehicle Code typically does not apply
24 on private property—with the exception of hit-and-run violations (sections 200001 to 20002) and
25 driving under the influence (sections 23136 et seq)—unless the local municipality passes an ordinance
26 holding otherwise. (Veh. Code § 21107.7; People v. Deacon (1978) 87 Cal.App.3d Supp. 29, 33, fn. 3
27 [explaining the application of the Vehicle Code to private roads and property]; and People v. Corder
28 (2018) 26 Cal.App.5th 554, 558 [“the Legislature enacted section 21107.7 with the intent of creating a
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DEFENDANT GERARDO CLAVEL’S TRIAL MANAGEMENT REPORT
1 mechanism whereby the rules of the road could be applied to private roads notwithstanding section
2 21001” which “refer exclusively to the operation of vehicles upon the highways, unless a different
3 place is specifically referred to”].)
4 Vicarious Liability
5 “Under the doctrine of respondeat superior, an employer is vicariously liable for his employee’s
6 torts committed within the scope of the employment. Francisco Perez was employed by Gerry
7 trucking. This doctrine is based on “‘a rule of policy, a deliberate allocation of a risk. The losses
8 caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the
9 employer’s enterprise, are placed upon that enterprise itself, as a required cost of doing business.”’”
10 (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967; see also Syah v. Johnson (1966) 247
11 Cal.App.2d 534, 540 [“Under the doctrine of vicarious liability, the agent must be negligent for the
12 principal to be held liable”].)
13 Under the permissive user statute codified in Vehicle Code section 17150, “[e]very owner of a
14 motor vehicle is liable and responsible for death or injury to person or property resulting from a
15 negligent or wrongful act or omission in the operation of the motor vehicle, in the business of the
16 owner or otherwise, by any person using or operating the same with the permission, express or
17 implied, of the owner.” “The liability of an owner, bailee of an owner, or personal representative of a
18 decedent imposed by this chapter and not arising through the relationship of principal and agent or
19 master and servant is limited to the amount of fifteen thousand dollars ($15,000) for the death of or
20 injury to one person in any one accident and, subject to the limit as to one person, is limited to the
21 amount of thirty thousand dollars ($30,000) for the death of or injury to more than one person in any
22 one accident and is limited to the amount of five thousand dollars ($5,000) for damage to property of
23 others in any one accident.” (Veh. Code § 17151.)
24 Direct Liability
25 “Liability for negligent supervision and/or retention of an employee is one of direct liability for
26 negligence, not vicarious liability.” (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790,
27 815.) “[A]n employer can be liable to a third person for negligently hiring, supervising, or retaining an
28 unfit employee.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) Further, liability may
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DEFENDANT GERARDO CLAVEL’S TRIAL MANAGEMENT REPORT
1 also be imposed on the hirer of an independent contractor for the negligent selection of the contractor.
2 (Noble v. Sears, Roebuck & Co. (1973) 33 Cal.App.3d 654, 662-663.) Thus, it is irrelevant whether a
3 principal’s relationship with its agent is based on an employer-employee or hirer-independent
4 contractor relationship. “Negligence liability will be imposed on an employer if it ‘knew or should
5 have known that hiring the employee created a particular risk or hazard and that particular harm
6 materializes.’” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.) “Liability for
7 negligent hiring and supervision is based upon the reasoning that if an enterprise hires individuals with
8 characteristics which might pose a danger to customers or other employees, the enterprise should bear
9 the loss caused by the wrongdoing of its incompetent or unfit employees. The tort has developed in
10 California in factual settings where the plaintiff’s injury occurred in the workplace, or the contact
11 between the plaintiff and the employee was generated by the employment relationship.” (Mendoza v.
12 City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339-1340.)
13 “A claim that an employer was negligent in hiring or retaining an employee-driver rarely
14 differs in substance from a claim that an employer was negligent in entrusting a vehicle to the
15 employee. Awareness, constructive or actual, that a person is unfit or incompetent to drive underlies a
16 claim that an employer was negligent in hiring or retaining that person as a driver.” (Diaz v. Carcamo
17 (2011) 51 Cal.4th 1148, 1157; see also Judicial Council of Cal. Civ. Jury Instns. (2021) CACI No.
18 426.) “That same awareness underlies a claim for negligent entrustment.” (Diaz, 51 Cal.4th 1at 1157;
19 see also Judicial Council of Cal. Civ. Jury Instns. (2021) CACI No. 724.) The elements of a negligent
20 entrustment cause of action are as follows: “1. That [name of driver] was negligent in operating the
21 vehicle; [¶] 2. That [name of defendant] was an owner of the vehicle operated by [name of driver]; [¶]
22 3. That [name of defendant] knew, or should have known, that [name of driver] was incompetent or
23 unfit to drive the vehicle; [¶] 4. That [name of defendant] permitted [name of driver] to use the vehicle;
24 and [¶] 5. That [name of driver]’s incompetence or unfitness to drive was a substantial factor in
25 causing harm to [name of plaintiff].” (Jeld-Wen, Inc. v. Superior Court (Keener) (2005) 131
26 Cal.App.4th 853, 863 citing Judicial Council of Cal. Civ. Jury Instns. (2021) CACI 724.) “[N]egligent
27 operation of the vehicle that was entrusted is a necessary element of the claim of negligent
28 entrustment.” (Id., at 864.)
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DEFENDANT GERARDO CLAVEL’S TRIAL MANAGEMENT REPORT
1 Normally, “[w]here a vehicle[’s] owner has admitted liability for the acts of the driver under
2 another theory of recovery, it is improper to allow the person injured in a motor vehicle accident to
3 proceed under the theory of negligent entrustment.” (Jeld-Wen, Inc., 131 Cal.App.4th at 862 citing
4 Armenta v. Churchill (1954) 42 Cal.2d 448, 457-458.) “[T]he negligent entrustment action is
5 abandoned because the plaintiff cannot hope to recover anymore [sic] than what the defendant already
6 conceded to under respondeat superior.” (Jeld-Wen, Inc., 131 Cal.App.4th at 862.) As such,
7 “[c]ollateral evidence necessary to establish negligent entrustment, therefore, becomes unnecessary,
8 irrelevant and inflammatory.” (Ibid.; see also Diaz, 51 Cal.4th at 1161 [“All of that evidence should
9 have been excluded after [defendant] offered to admit vicarious liability”].) This is because “[a]n
10 employer’s admission of vicarious liability for an employee’s negligent driving in the course of
11 employment bars a plaintiff from pursuing a claim for negligent entrustment” as well as “negligent
12 hiring and retention claims ... .” (Diaz, 51 Cal.4th at 1161.)
13 IV. TRIAL BRIEFS, PRE-TRIAL MOTIONS AND MOTIONS IN LIMINE
14 Defendant Clavel’s trial brief is attached hereto as Exhibit A.
15 Defendant Clavel does not intend to file pre-trial motions except the following 12 motions in
16 limine, attached as Exhibit B:
17 1. Exclusion of non-expert testimony of Francisco Perez;
18 2. Exclusion of Expert Witnesses Not Identified in Plaintiff’s Expert Witness Disclosure;
19 3. Exclusion of Plaintiff’s Expert Witness’ Opinions Not Expressed at Deposition;
20 4. Exclusion of Appeal to Golden Rule;
21 5. Exclusion of Documents or Other Evidence Not Produced or Disclosed in Discovery;
22 6. Exclusion of Reference to Insurance;
23 7. Exclusion of Reference to Wage Loss;
24 8. Exclusion of the Traffic Collision Report;
25 9. Exclusion of Reference to Profits and/or Financial Condition;
26 10. Exclusion of all Non-Party Witnesses from the Courtroom at all Times the Witness is
27 Not Testifying; and
28 11. Exclusion of plaintiff’s non-recoverable Howell medical bills;
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DEFENDANT GERARDO CLAVEL’S TRIAL MANAGEMENT REPORT
1 12. Exclusion of all evidence and information from any untimely, improperly, or non-
2 designated witnesses.
3 V. DISCOVERY
4 Discovery is complete.
5 VI. STIPULATIONS
6 There have been no specific stipulations regarding trial.
7 VII. EXHIBITS
8 Defendant Clavel does not have exhibits at this time. Exhibit list to follow.
9 VIII. DISCOVERY MATERIALS
10 At this time, defendant Clavel does not intend to use deposition transcripts.
11 IX. VIDEO DEPOSITIONS
12 At this time, defendant Clavel is unaware of and does not intend to use video depositions.
13 X. WITNESSES
14 Defendant Clavel does not have witnesses at this time.
15 XI. VOIR DIRE
16 Defendant Clavel requests the court inquire into the following subject areas:
17 • Truck driving experience;
18 • Produce transportation;
19 • Loading and unloading freight;
20 • Determination of employee or independent contractor status;
21 • Experience in medical field, including but not limited to: trauma, chiropractic treatment,
22 physical therapy, orthopedics, medical billing and patient advocacy;
23 • Parking lot safety;
24 • Accident investigation; and
25 • Leukemia.
26 XII. JURY INSTRUCTIONS
27 Please find defendant Clavel’s proposed jury instructions as Exhibit C.
28
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DEFENDANT GERARDO CLAVEL’S TRIAL MANAGEMENT REPORT
1 XIII. VERDICT FORMS
2 Please find defendant Clavel’s proposed verdict form attached as Exhibit D.
3 XIV. OTHER REQUESTS
4 Defendant Clavel is not aware of any other requests.
5 DATED: April 30, 2024
HEATH & YUEN, APC
6
7
By
8 Paul A. Vaillancourt
Attorneys for Defendant
9 Gerardo Clavel
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DEFENDANT GERARDO CLAVEL’S TRIAL MANAGEMENT REPORT
CACI Instruction Plaintiff Clavel Inns of CA
100 Preliminary Admonitions Requesting
101 Overview of Trial Requesting
102 Taking Notes During the Trial Requesting
103 Multiple Parties Requesting
104 Nonperson Party Requesting
105 Insurance Requesting
106 Evidence Requesting
107 Witnesses Requesting
108 Duty to Abide by Translation Provided in Requesting
Court
109 Removal of Claims or Parties Requesting
110 Service Provider for Juror With Disability Requesting
111 Instruction to Alternate Jurors Requesting
112 Questions From Jurors Requesting
113 Bias Requesting
114 Bench Conferences and Conferences in Requesting
Chambers
116 Why Electronic Communications and Requesting
Research Are Prohibited
117 Wealth of Parties Requesting
200 Obligation to Prove—More Likely True Requesting
Than Not True
202 Direct and Indirect Evidence Requesting
203 Party Having Power to Produce Better Requesting
Evidence
204 Willful Suppression of Evidence Requesting
205 Failure to Explain or Deny Evidence Requesting
206 Evidence Admitted for Limited Purpose Requesting
207 Evidence Applicable to One Party Requesting
208 Deposition as Substantive Evidence Requesting
209 Use of Interrogatories of a Party Requesting
212 Statements of a Party Opponent Requesting
215 Exercise of a Communication Privilege Requesting
217 Evidence of Settlement Requesting
219 Expert Witness Testimony Requesting
220 Experts—Questions Containing Assumed Requesting
Facts
221 Conflicting Expert Testimony Requesting
223 Opinion Testimony of Law Witness Requesting
400 Negligence—Essential Factual Elements Requesting
401 Basic Standard of Care Requesting
405 Comparative Fault of Plaintiff Requesting
406 Apportionment of Responsibility Requesting
411 Reliance on Good Conduct of Others Requesting
413 Custom or Practice Requesting
Exhibit C
CACI Instruction Plaintiff Clavel Inns of CA
414 Amount of Caution Required in Requesting
Dangerous Situations
417 Special Doctrines: Res Ipsa Loquitor Requesting
426 Negligent Hiring, Supervision, or Requesting
Retention of Employee
430 Causation: Substantial Factor Requesting
431 Causation: Multiple Causes Requesting
432 Affirmative Defense—Causation: Third- Requesting
Party Conduct as Superseding Cause
434 Alternative Causation Requesting
VF-402 Negligence—Fault of Plaintiff and Others Requesting
at Issue
700 Basic Standard of Care Requesting
720 Motor Vehicle Owner Liability – Requesting
Permissive Use of Vehicle
724 Negligent Entrustment of Motor Vehicle Requesting
3700 Introduction of Vicarious Responsibility Requesting
3704 Existence of “Employee” Status Disputed Requesting
3900 Introduction to Tort Damages – Liability Requesting
Contested
3902 Economic and Noneconomic Damages Requesting
3903 Items of Noneconomic Damages Requesting
3903A Medical Expenses – Past and Future Requesting
3903C Past and Future Lost Earnings Requesting
3903D Lost Earning Capacity Requesting
3903E Loss of Ability to Provide Household Requesting
Services
3904A Present Cash Value Requesting
3904B Use of Present-Value Tables Requesting
3905 Items of Noneconomic Damages Requesting
3905A Physical Pain, Mental Suffering, and Requesting
Emotional Distress
3925 Argument of Counsel not Evidence of Requesting
Damages
3929 Subsequent Medical Treatment or Aid Requesting
3930 Mitigation of Damages – Personal Injury Requesting
3932 Life Expectancy Requesting
3960 Comparative Fault of Plaintiff Requesting
3961 Duty to Mitigate Damages for Past Lost Requesting
Earnings
3962 Duty to Mitigate Damages for Future Requesting
Lost Earnings
5000 Duties of the Judge and Jury Requesting
5001 Insurance Requesting
5002 Evidence Requesting
CACI Instruction Plaintiff Clavel Inns of CA
5003 Witnesses Requesting
5004 Service Provider for Juror With Disability Requesting
5005 Multiple Parties Requesting
5006 Nonperson Party Requesting
5007 Removal of Claims or Parties and Requesting
Remaining Claims and Parties
5008 Duty to Abide by Translation Provided in Requesting
Court
5009 Predeliberation Instructions Requesting
5010 Taking Notes During the Trial Requesting
5011 Reading Back of Trial Testimony in Jury Requesting
Room
5012 Introduction to Special Verdict Form Requesting
5013 Deadlocked Jury Admonition Requesting
5014 Substitution of Alternate Juror Requesting
5015 Instruction to Alternate Jurors on Requesting
Submission of Case to Jury
5016 Judge’s Commenting on Evidence Requesting
5017 Polling the Jury Requesting
5018 Audio or Video Recording and Requesting
Transcription
5019 Questions From Jurors Requesting
5020 Demonstrative Evidence Requesting
5021 Electronic Evidence Requesting
5022 Introduction to General Verdict Form Requesting
5030 Implicit or Unconscious Bias Requesting
5090 Final Instruction on Discharge of Jury Requesting
1 CERTIFICATE OF SERVICE
2 I, Wendy H. Yang, declare:
3 At the time of service I was over 18 years of age, and not a party to this action. My business
4 mailing address is 268 Bush Street, #3006, San Francisco, California 94104.
5 On April 30, 2024, I served the following document(s) on the parties in the within action:
6 DEFENDANT GERARDO CLAVEL’S TRIAL MANAGEMENT REPORT
7 EXHIBIT C – PROPOSED JURY INSTRUCTION
8 BY E-MAIL: Per Civil Procedure Code section 1010.6(e)(1), “[a] party represented by
counsel, who has appeared in an action or proceeding, shall accept electronic service of a
9 notice or document that may be served by mail, express mail, overnight delivery, or facsimile
transmission.” Before serving, I confirmed by telephone or e-mail the appropriate electronic
10 X service address for counsel being served. I attached the document(s) to an e-mail, and invoked
the send command to transmit the e-mail to the person(s) at the e-mail address(es) listed below.
11 I did not receive within a reasonable time after the transmission any electronic message or
other indication the transmission was unsuccessful.
12
S. Colin Brown Attorneys For Plaintiff
13 LAW OFFICE OF S. COLIN BROWN ISMAEL LOPEZ
1010 Fair Avenue, Suite H
14 Santa Cruz, CA 95060-5860
Phone (831) 426-1300 | Fax (831) 515-5335
15 colinbrownlaw@gmail.com
16 Anthony F. Pinelli Attorneys For Defendant
WILLIAMS, PINELLI & CULLEN INNS OF CALIFORNIA
17 1960 The Alameda, Suite 195
San Jose, CA 95126-1448
18 Phone (408) 288-3868 | Fax (408) 288-3860
apinelli@wpclaw.com
19 edurand@wpclaw.com
20 I declare under penalty of perjury under the laws of the State of California the foregoing is a
21 true and correct statement, and this certificate was executed on April 30, 2024.
22
By
23 Wendy H. Yang
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DEFENDANT GERARDO CLAVEL’S TRIAL MANAGEMENT REPORT
Preview
1 Stephen B. Heath - 237622 Steven W. Yuen - 230768 2 eservice@heathandyuen.com Paul A. Vaillancourt - 223648 3 pvaillancourt@heathandyuen.com HEATH & YUEN, APC 4 268 Bush Street, #3006 San Francisco, CA 94104 5 Tel: (415) 622-7004 Fax: (415) 373-3957 6 Attorneys for Defendant 7 Gerardo Clavel 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF MONTEREY 10 ISMAEL LOPEZ, Case No.: 20CV002481 11 Plaintiff, DEFENDANT GERARDO CLAVEL’S TRIAL MANAGEMENT REPORT 12 v. Judge: Hon. Thomas W. Wills 13 INNS OF CALIFORNIA, GERARDO CLAVEL, Dept.: 15 GERRY TRUCKING LLC, AND DOES 1 TO File Date: September 16, 2020 14 25, Trial Date: May 6, 2024 15 Defendants. _______________________________________ 16 17 I. ATTORNEY AND CASE INFORMATION 18 Case Name: Ismael Lopez v. Inns of California, Gerardo Clavel, Gerry Trucking and DOES 1-25 19 Trial Attorneys: 20 • Plaintiff Lopez: S. Colin Brown - (831) 426-1300; 21 • Defendant Gerardo Clavel: Stephen Heath and Steven Yuen - (415) 622-7004; 22 • Defendant Inns of California: Anthony Pinelli - (408) 288-3868; 23 • Gerry Trucking LLC: suspended and unrepresented; 24 • Francisco Perez: default taken. 25 II. SUMMARY AND NATURE OF THE CASE 26 In June 2020, suspended corporation Gerry Trucking’s business activities included shipping 27 produce in the Salinas area. Gerry Trucking would rent parking spots for its 4-5 trucks at Inns of 28 California on a monthly basis. Approximately 18-25 trucks utilized the parking spots at any given -1- DEFENDANT GERARDO CLAVEL’S TRIAL MANAGEMENT REPORT 1 time, and the drivers would typically only be present early in the morning to start their day and return 2 to the lot at the end of their day. 3 On June 9, 2020, between 10:00a.m. and 11:00a.m. plaintiff was at the lot that had been 4 previously shown to him as the location of the trucks, should he had been hired. The weather was 5 clear and any sound from nearby Highway 101 would not impact anyone’s ability to conduct a normal 6 conversation. An employee of Gerry Trucking, Francisco Perez, was also at the lot and needed to 7 transfer a pallet jack from the back of his box truck, to the back of plaintiff’s. This is a common 8 occurrence in the industry as it allows for the pallet jack to easily transferred by simply pushing the 9 pallet jack from one to the other. Mr. Perez and plaintiff discussed, and it was clear to both, that Perez 10 was going to back up to plaintiff’s truck. Despite knowing the plan and there being no visual or 11 auditory issues, plaintiff somehow situated himself between the two trucks causing injury. 12 Gerry Trucking was suspended by the secretary of State on October 5, 2021, well after the 13 incident. Francisco Perez was DOE’d into the case and his default was later taken. Plaintiff also has a 14 claim against the Inns of California for premises liability. 15 III. STATEMENT OF ISSUES, CAUSES OF ACTIONS, AND DEFENSES 16 Plaintiff’s Negligence Claim 17 “The elements of a cause of action for negligence are well established. They are ‘(a) a legal 18 duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal 19 cause of the resulting injury.’” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) “A person 20 must use reasonable care in driving a vehicle. Drivers must keep a lookout for pedestrians, obstacles, 21 and other vehicles. They must also control the speed and movement of their vehicles. The failure to 22 use reasonable care in driving a vehicle is negligence.” (Judicial Council of Cal. Civ. Jury Instns. 23 (2021) CACI 700.) 24 The doctrine of res ipsa loquitor, codified at Evidence Code section 646, “is defined by statute 25 as ‘a presumption affecting the burden of producing evidence.’” (Brown v. Poway Unified Sch. Dist. 26 (1993) 4 Cal.4th 820, 825, cited in Judicial Council of Cal. Civ. Jury Instns. (2022) CACI 417.) “The 27 presumption arises when the evidence satisfies three conditions: (1) the accident must be of a kind 28 which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an -2- DEFENDANT GERARDO CLAVEL’S TRIAL MANAGEMENT REPORT 1 agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due 2 to any voluntary action or contribution on the part of the plaintiff.” (Id., at 825-826, internal quotation 3 marks omitted, emphasis added.) “‘The doctrine of res ipsa loquitur is applicable where the accident is 4 of such a nature that it can be said, in the light of past experience, that it probably was the result of 5 negligence by someone and that the defendant is probably the one responsible.’” (Howe v. Seven Forty 6 Two Co., Inc. (2010) 189 Cal.App.4th 1155, 1161.) The doctrine “is based on a theory of ‘probability’ 7 where there is no direct evidence of defendant’s conduct, permitting a common sense inference of 8 negligence from the happening of the accident.” (Gicking v. Kimberlin (1985) 170 Cal.App.3d 73, 75.) 9 “All of the cases hold, in effect, that it must appear, either as a matter of common experience or from 10 evidence in the case, that the accident is of a type which probably would not happen unless someone 11 was negligent.” (Zentz v. Coca Cola Bottling Co. of Fresno (1952) 39 Cal.2d 436, 442-443.) 12 A driver can be found negligent despite looking while backing their vehicle. (McManus v. 13 Arnold Taxi Corp. (1927) 82 Cal.App. 215, 218-219 [“the finding upon the question of negligence 14 must be sustained under those authorities holding in substance that where one passing several feet back 15 of a standing automobile is injured by reason of the sudden backing of the machine, without warning, 16 an inference that the driver is negligent is justified”].) The fact a driver thought he had sufficient space 17 to back up without striking another vehicle does not relieve the driver’s employer from liability under 18 last clear chance doctrine for injuries sustained in a resulting collision. (Perin v. Nelson & Sloan 19 (1953) 119 Cal.App.2d 560, 561-562.) In this case, the driver Perez was an employee of Gerry 20 Trucking. 21 Normally, it is a vehicle violation to reverse a vehicle onto a highway or street, unless it can be 22 done with “reasonable safety.” Whether an act can be done with “reasonable safety” is determined by 23 the facts of a case. (Veh. Code §22106.) However, California’s Vehicle Code typically does not apply 24 on private property—with the exception of hit-and-run violations (sections 200001 to 20002) and 25 driving under the influence (sections 23136 et seq)—unless the local municipality passes an ordinance 26 holding otherwise. (Veh. Code § 21107.7; People v. Deacon (1978) 87 Cal.App.3d Supp. 29, 33, fn. 3 27 [explaining the application of the Vehicle Code to private roads and property]; and People v. Corder 28 (2018) 26 Cal.App.5th 554, 558 [“the Legislature enacted section 21107.7 with the intent of creating a -3- DEFENDANT GERARDO CLAVEL’S TRIAL MANAGEMENT REPORT 1 mechanism whereby the rules of the road could be applied to private roads notwithstanding section 2 21001” which “refer exclusively to the operation of vehicles upon the highways, unless a different 3 place is specifically referred to”].) 4 Vicarious Liability 5 “Under the doctrine of respondeat superior, an employer is vicariously liable for his employee’s 6 torts committed within the scope of the employment. Francisco Perez was employed by Gerry 7 trucking. This doctrine is based on “‘a rule of policy, a deliberate allocation of a risk. The losses 8 caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the 9 employer’s enterprise, are placed upon that enterprise itself, as a required cost of doing business.”’” 10 (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967; see also Syah v. Johnson (1966) 247 11 Cal.App.2d 534, 540 [“Under the doctrine of vicarious liability, the agent must be negligent for the 12 principal to be held liable”].) 13 Under the permissive user statute codified in Vehicle Code section 17150, “[e]very owner of a 14 motor vehicle is liable and responsible for death or injury to person or property resulting from a 15 negligent or wrongful act or omission in the operation of the motor vehicle, in the business of the 16 owner or otherwise, by any person using or operating the same with the permission, express or 17 implied, of the owner.” “The liability of an owner, bailee of an owner, or personal representative of a 18 decedent imposed by this chapter and not arising through the relationship of principal and agent or 19 master and servant is limited to the amount of fifteen thousand dollars ($15,000) for the death of or 20 injury to one person in any one accident and, subject to the limit as to one person, is limited to the 21 amount of thirty thousand dollars ($30,000) for the death of or injury to more than one person in any 22 one accident and is limited to the amount of five thousand dollars ($5,000) for damage to property of 23 others in any one accident.” (Veh. Code § 17151.) 24 Direct Liability 25 “Liability for negligent supervision and/or retention of an employee is one of direct liability for 26 negligence, not vicarious liability.” (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 27 815.) “[A]n employer can be liable to a third person for negligently hiring, supervising, or retaining an 28 unfit employee.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) Further, liability may -4- DEFENDANT GERARDO CLAVEL’S TRIAL MANAGEMENT REPORT 1 also be imposed on the hirer of an independent contractor for the negligent selection of the contractor. 2 (Noble v. Sears, Roebuck & Co. (1973) 33 Cal.App.3d 654, 662-663.) Thus, it is irrelevant whether a 3 principal’s relationship with its agent is based on an employer-employee or hirer-independent 4 contractor relationship. “Negligence liability will be imposed on an employer if it ‘knew or should 5 have known that hiring the employee created a particular risk or hazard and that particular harm 6 materializes.’” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.) “Liability for 7 negligent hiring and supervision is based upon the reasoning that if an enterprise hires individuals with 8 characteristics which might pose a danger to customers or other employees, the enterprise should bear 9 the loss caused by the wrongdoing of its incompetent or unfit employees. The tort has developed in 10 California in factual settings where the plaintiff’s injury occurred in the workplace, or the contact 11 between the plaintiff and the employee was generated by the employment relationship.” (Mendoza v. 12 City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339-1340.) 13 “A claim that an employer was negligent in hiring or retaining an employee-driver rarely 14 differs in substance from a claim that an employer was negligent in entrusting a vehicle to the 15 employee. Awareness, constructive or actual, that a person is unfit or incompetent to drive underlies a 16 claim that an employer was negligent in hiring or retaining that person as a driver.” (Diaz v. Carcamo 17 (2011) 51 Cal.4th 1148, 1157; see also Judicial Council of Cal. Civ. Jury Instns. (2021) CACI No. 18 426.) “That same awareness underlies a claim for negligent entrustment.” (Diaz, 51 Cal.4th 1at 1157; 19 see also Judicial Council of Cal. Civ. Jury Instns. (2021) CACI No. 724.) The elements of a negligent 20 entrustment cause of action are as follows: “1. That [name of driver] was negligent in operating the 21 vehicle; [¶] 2. That [name of defendant] was an owner of the vehicle operated by [name of driver]; [¶] 22 3. That [name of defendant] knew, or should have known, that [name of driver] was incompetent or 23 unfit to drive the vehicle; [¶] 4. That [name of defendant] permitted [name of driver] to use the vehicle; 24 and [¶] 5. That [name of driver]’s incompetence or unfitness to drive was a substantial factor in 25 causing harm to [name of plaintiff].” (Jeld-Wen, Inc. v. Superior Court (Keener) (2005) 131 26 Cal.App.4th 853, 863 citing Judicial Council of Cal. Civ. Jury Instns. (2021) CACI 724.) “[N]egligent 27 operation of the vehicle that was entrusted is a necessary element of the claim of negligent 28 entrustment.” (Id., at 864.) -5- DEFENDANT GERARDO CLAVEL’S TRIAL MANAGEMENT REPORT 1 Normally, “[w]here a vehicle[’s] owner has admitted liability for the acts of the driver under 2 another theory of recovery, it is improper to allow the person injured in a motor vehicle accident to 3 proceed under the theory of negligent entrustment.” (Jeld-Wen, Inc., 131 Cal.App.4th at 862 citing 4 Armenta v. Churchill (1954) 42 Cal.2d 448, 457-458.) “[T]he negligent entrustment action is 5 abandoned because the plaintiff cannot hope to recover anymore [sic] than what the defendant already 6 conceded to under respondeat superior.” (Jeld-Wen, Inc., 131 Cal.App.4th at 862.) As such, 7 “[c]ollateral evidence necessary to establish negligent entrustment, therefore, becomes unnecessary, 8 irrelevant and inflammatory.” (Ibid.; see also Diaz, 51 Cal.4th at 1161 [“All of that evidence should 9 have been excluded after [defendant] offered to admit vicarious liability”].) This is because “[a]n 10 employer’s admission of vicarious liability for an employee’s negligent driving in the course of 11 employment bars a plaintiff from pursuing a claim for negligent entrustment” as well as “negligent 12 hiring and retention claims ... .” (Diaz, 51 Cal.4th at 1161.) 13 IV. TRIAL BRIEFS, PRE-TRIAL MOTIONS AND MOTIONS IN LIMINE 14 Defendant Clavel’s trial brief is attached hereto as Exhibit A. 15 Defendant Clavel does not intend to file pre-trial motions except the following 12 motions in 16 limine, attached as Exhibit B: 17 1. Exclusion of non-expert testimony of Francisco Perez; 18 2. Exclusion of Expert Witnesses Not Identified in Plaintiff’s Expert Witness Disclosure; 19 3. Exclusion of Plaintiff’s Expert Witness’ Opinions Not Expressed at Deposition; 20 4. Exclusion of Appeal to Golden Rule; 21 5. Exclusion of Documents or Other Evidence Not Produced or Disclosed in Discovery; 22 6. Exclusion of Reference to Insurance; 23 7. Exclusion of Reference to Wage Loss; 24 8. Exclusion of the Traffic Collision Report; 25 9. Exclusion of Reference to Profits and/or Financial Condition; 26 10. Exclusion of all Non-Party Witnesses from the Courtroom at all Times the Witness is 27 Not Testifying; and 28 11. Exclusion of plaintiff’s non-recoverable Howell medical bills; -6- DEFENDANT GERARDO CLAVEL’S TRIAL MANAGEMENT REPORT 1 12. Exclusion of all evidence and information from any untimely, improperly, or non- 2 designated witnesses. 3 V. DISCOVERY 4 Discovery is complete. 5 VI. STIPULATIONS 6 There have been no specific stipulations regarding trial. 7 VII. EXHIBITS 8 Defendant Clavel does not have exhibits at this time. Exhibit list to follow. 9 VIII. DISCOVERY MATERIALS 10 At this time, defendant Clavel does not intend to use deposition transcripts. 11 IX. VIDEO DEPOSITIONS 12 At this time, defendant Clavel is unaware of and does not intend to use video depositions. 13 X. WITNESSES 14 Defendant Clavel does not have witnesses at this time. 15 XI. VOIR DIRE 16 Defendant Clavel requests the court inquire into the following subject areas: 17 • Truck driving experience; 18 • Produce transportation; 19 • Loading and unloading freight; 20 • Determination of employee or independent contractor status; 21 • Experience in medical field, including but not limited to: trauma, chiropractic treatment, 22 physical therapy, orthopedics, medical billing and patient advocacy; 23 • Parking lot safety; 24 • Accident investigation; and 25 • Leukemia. 26 XII. JURY INSTRUCTIONS 27 Please find defendant Clavel’s proposed jury instructions as Exhibit C. 28 -7- DEFENDANT GERARDO CLAVEL’S TRIAL MANAGEMENT REPORT 1 XIII. VERDICT FORMS 2 Please find defendant Clavel’s proposed verdict form attached as Exhibit D. 3 XIV. OTHER REQUESTS 4 Defendant Clavel is not aware of any other requests. 5 DATED: April 30, 2024 HEATH & YUEN, APC 6 7 By 8 Paul A. Vaillancourt Attorneys for Defendant 9 Gerardo Clavel 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- DEFENDANT GERARDO CLAVEL’S TRIAL MANAGEMENT REPORT CACI Instruction Plaintiff Clavel Inns of CA 100 Preliminary Admonitions Requesting 101 Overview of Trial Requesting 102 Taking Notes During the Trial Requesting 103 Multiple Parties Requesting 104 Nonperson Party Requesting 105 Insurance Requesting 106 Evidence Requesting 107 Witnesses Requesting 108 Duty to Abide by Translation Provided in Requesting Court 109 Removal of Claims or Parties Requesting 110 Service Provider for Juror With Disability Requesting 111 Instruction to Alternate Jurors Requesting 112 Questions From Jurors Requesting 113 Bias Requesting 114 Bench Conferences and Conferences in Requesting Chambers 116 Why Electronic Communications and Requesting Research Are Prohibited 117 Wealth of Parties Requesting 200 Obligation to Prove—More Likely True Requesting Than Not True 202 Direct and Indirect Evidence Requesting 203 Party Having Power to Produce Better Requesting Evidence 204 Willful Suppression of Evidence Requesting 205 Failure to Explain or Deny Evidence Requesting 206 Evidence Admitted for Limited Purpose Requesting 207 Evidence Applicable to One Party Requesting 208 Deposition as Substantive Evidence Requesting 209 Use of Interrogatories of a Party Requesting 212 Statements of a Party Opponent Requesting 215 Exercise of a Communication Privilege Requesting 217 Evidence of Settlement Requesting 219 Expert Witness Testimony Requesting 220 Experts—Questions Containing Assumed Requesting Facts 221 Conflicting Expert Testimony Requesting 223 Opinion Testimony of Law Witness Requesting 400 Negligence—Essential Factual Elements Requesting 401 Basic Standard of Care Requesting 405 Comparative Fault of Plaintiff Requesting 406 Apportionment of Responsibility Requesting 411 Reliance on Good Conduct of Others Requesting 413 Custom or Practice Requesting Exhibit C CACI Instruction Plaintiff Clavel Inns of CA 414 Amount of Caution Required in Requesting Dangerous Situations 417 Special Doctrines: Res Ipsa Loquitor Requesting 426 Negligent Hiring, Supervision, or Requesting Retention of Employee 430 Causation: Substantial Factor Requesting 431 Causation: Multiple Causes Requesting 432 Affirmative Defense—Causation: Third- Requesting Party Conduct as Superseding Cause 434 Alternative Causation Requesting VF-402 Negligence—Fault of Plaintiff and Others Requesting at Issue 700 Basic Standard of Care Requesting 720 Motor Vehicle Owner Liability – Requesting Permissive Use of Vehicle 724 Negligent Entrustment of Motor Vehicle Requesting 3700 Introduction of Vicarious Responsibility Requesting 3704 Existence of “Employee” Status Disputed Requesting 3900 Introduction to Tort Damages – Liability Requesting Contested 3902 Economic and Noneconomic Damages Requesting 3903 Items of Noneconomic Damages Requesting 3903A Medical Expenses – Past and Future Requesting 3903C Past and Future Lost Earnings Requesting 3903D Lost Earning Capacity Requesting 3903E Loss of Ability to Provide Household Requesting Services 3904A Present Cash Value Requesting 3904B Use of Present-Value Tables Requesting 3905 Items of Noneconomic Damages Requesting 3905A Physical Pain, Mental Suffering, and Requesting Emotional Distress 3925 Argument of Counsel not Evidence of Requesting Damages 3929 Subsequent Medical Treatment or Aid Requesting 3930 Mitigation of Damages – Personal Injury Requesting 3932 Life Expectancy Requesting 3960 Comparative Fault of Plaintiff Requesting 3961 Duty to Mitigate Damages for Past Lost Requesting Earnings 3962 Duty to Mitigate Damages for Future Requesting Lost Earnings 5000 Duties of the Judge and Jury Requesting 5001 Insurance Requesting 5002 Evidence Requesting CACI Instruction Plaintiff Clavel Inns of CA 5003 Witnesses Requesting 5004 Service Provider for Juror With Disability Requesting 5005 Multiple Parties Requesting 5006 Nonperson Party Requesting 5007 Removal of Claims or Parties and Requesting Remaining Claims and Parties 5008 Duty to Abide by Translation Provided in Requesting Court 5009 Predeliberation Instructions Requesting 5010 Taking Notes During the Trial Requesting 5011 Reading Back of Trial Testimony in Jury Requesting Room 5012 Introduction to Special Verdict Form Requesting 5013 Deadlocked Jury Admonition Requesting 5014 Substitution of Alternate Juror Requesting 5015 Instruction to Alternate Jurors on Requesting Submission of Case to Jury 5016 Judge’s Commenting on Evidence Requesting 5017 Polling the Jury Requesting 5018 Audio or Video Recording and Requesting Transcription 5019 Questions From Jurors Requesting 5020 Demonstrative Evidence Requesting 5021 Electronic Evidence Requesting 5022 Introduction to General Verdict Form Requesting 5030 Implicit or Unconscious Bias Requesting 5090 Final Instruction on Discharge of Jury Requesting 1 CERTIFICATE OF SERVICE 2 I, Wendy H. Yang, declare: 3 At the time of service I was over 18 years of age, and not a party to this action. My business 4 mailing address is 268 Bush Street, #3006, San Francisco, California 94104. 5 On April 30, 2024, I served the following document(s) on the parties in the within action: 6 DEFENDANT GERARDO CLAVEL’S TRIAL MANAGEMENT REPORT 7 EXHIBIT C – PROPOSED JURY INSTRUCTION 8 BY E-MAIL: Per Civil Procedure Code section 1010.6(e)(1), “[a] party represented by counsel, who has appeared in an action or proceeding, shall accept electronic service of a 9 notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission.” Before serving, I confirmed by telephone or e-mail the appropriate electronic 10 X service address for counsel being served. I attached the document(s) to an e-mail, and invoked the send command to transmit the e-mail to the person(s) at the e-mail address(es) listed below. 11 I did not receive within a reasonable time after the transmission any electronic message or other indication the transmission was unsuccessful. 12 S. Colin Brown Attorneys For Plaintiff 13 LAW OFFICE OF S. COLIN BROWN ISMAEL LOPEZ 1010 Fair Avenue, Suite H 14 Santa Cruz, CA 95060-5860 Phone (831) 426-1300 | Fax (831) 515-5335 15 colinbrownlaw@gmail.com 16 Anthony F. Pinelli Attorneys For Defendant WILLIAMS, PINELLI & CULLEN INNS OF CALIFORNIA 17 1960 The Alameda, Suite 195 San Jose, CA 95126-1448 18 Phone (408) 288-3868 | Fax (408) 288-3860 apinelli@wpclaw.com 19 edurand@wpclaw.com 20 I declare under penalty of perjury under the laws of the State of California the foregoing is a 21 true and correct statement, and this certificate was executed on April 30, 2024. 22 By 23 Wendy H. Yang 24 25 26 27 28 -9- DEFENDANT GERARDO CLAVEL’S TRIAL MANAGEMENT REPORT